Geert Wilders on Trial: Prosecutors Dump Case So What?

Reuters reports in a terse article that the Prosecution moved for dismissal on the remaining counts against Geert Wilders. It appears that they differentiate between Islam and Muslims. It is further suggested that Wilders, as a politician, has a right to discuss social problems.  

    Gates of Vienna has further information. Click here for the complete article, summarizing the Prosecutor's report. Links are provided to the Prosecutor's summary, in two parts.

• http://www.om.nl/publish/pages/123465/summarypublicprosecutorclosingspeechgwilders_part1.pdf
• http://www.om.nl/publish/pages/123638/summarypublicprosecutorclosingspeechgwilders_part2.pdf

Part one, seven pages long, relates to the first motion to dismiss a single charge from 10/12.  

    If the motion is granted, and if acquittal results,  and if the decision is upheld on appeal then  the precedent  may extend only to political office holders, not to citizens.

A politician will , pre-eminently, have a great extent of freedom to
persuade others to follow his political views. The articles on discrimination in the Dutch Criminal Code
may constitute a possible restriction of said freedom.

    An element of ambiguity creeps in regarding the truth defense.  Truth is not a defense but provision of substantiation must be considered.

The truth

Wilders has indicated before that he cannot be liable to punishment since what he says is the truth.
The truthfulness of Wilders’ statements is by no means being judged in this trial. This is quite irrelevant
for the assessment from a criminal law perspective, since the statements concerned constitute
Wilders’ opinion. His statements, reflecting his opinion, can be assessed in order to determine whether
any provisions concerning discrimination have been violated. Pursuant to European case law, the
question whether Wilders provides (any) factual substantiation for his statements must indeed be
considered. [Emphasis added,]

    Precedents are discussed, from the ECHR. Then comes this tempting tidbit.  In assessing this, bear in mind its singular application to opposition politicians and the precedents discussed here. Take careful note of the caution which follows the quote on pg. 4.

A discussion of general interest may involve a certain degree of exaggeration and provocation, i.e. a certain degree of excessiveness.

The other side of the coin is that statements which generate feelings of rejection and hostility and incite hatred, may indeed be punishable. Political statements which incite hatred constitute a threat to peace in society and political stability in democratic states. Politicians must be very careful, since their goal is to accede to power. It is essential that politicians avoid using words that could propagate intolerance.

    Another prime tidbit emerges from the legalese.

The Supreme Court does not consider the statement ‘stop the tumor called Islam” to be punishable since the statement does not unequivocally refer to a group of people because of their religion.

    Take careful note of the detail elucidated in the succeeding paragraph.

It is quite conceivable that people who feel very connected to their religion, feel that they (too) are being discriminated against when their religion is being criticized. However, from a legal perspective there is a strict distinction between a statement that refers to a religion and a statement that relates to people who adhere to that religion. Criticizing the opinions or the behavior of those who belong to the group, particularly including behavior directly related to or directly emanating from the religion, is not punishable. Criticizing a religion is not punishable, even if it is in very coarse language. Any hurt feelings may not be considered in the legal assessment of the element “insulting about a group of people”

    How will you unscramble this egg?

Only impairing the self-respect or discrediting the group because it belongs to a specific race, has a specific religion or philosophy of life, is punishable. Feelings of the group are , as stated above, not considered in this respect. [Emphasis added.]

    Read between the lines, inter alia, as they say in the UN resolutions.

When a statement is a contribution to the public debate, is made in the context of a religious conviction or in the context of an artistic expression, it can dispel the insulting nature of the statement. This does not necessarily mean that the statement is in practice experienced as less serious; this concerns the juristic construction as applied by the Supreme Court. We only focus on the public debate because it is important in this trial.

  
    Part two discusses the other charges and delves into the legislative  climate.

When the sections were introduced, avoiding unnecessary restrictions on freedom of expression was considered to be very important. Accordingly, no obstacles under criminal law were imposed on criticizing views, even if such criticism were offensive. Criticism of the deepest convictions among religious people and of religion itself and the institutes and organisations based on religion is permitted, and the same holds true for Section 137d Sr. Criticism is punishable, however, if it unmistakably targets the actual people, and not merely their views, convictions and conduct.

I don't think the OIC will let that set precedent.
  
    Dangerous ambiguity is encountered on the third page of Part 2.

Intent

The word ‘intent’ does not appear in the description of the offence in Section 137d Sr. Still, ‘instigating hatred or discrimination’ is regarded as an intentional offence. The intent requirement is contained in the word ‘instigate’.
Section 137d Sr is a formal offence. This means that the possible consequence that may or may not ensue from the offence, or the likelihood of that consequence, does not determine whether the description of the offence has been fulfilled. The intent of the suspect need not concern a specific consequence or a specific likelihood of that consequence. The intent is present, if the suspect mustnecessarily have been aware of the hate-instigating nature of the expressions used. [Emphasis added.]

    This gets boiled down to essence near the end of page 4. The reference is plural, to Fitna, a letter to the editor and several interviews.

Statements about Islam and the Koran are not instigations of hatred against people.

  There is too much legal detail in part one of the Prosecutor's summation, and I am not a lawyer.  I have no doubt that this case will be appealed.  By this time, lawyers for the OIC must have gone over Part 1 with a microscope, in preparation for appeals. More importantly, their analysis will certainly be reflected in future resolutions and protocols.  I hope that ECLJ, Art19, IHEU and others are intensely pouring over the whole set of documents in preparation for round two.

        In essence, the Prosecutors have pissed on the OIC's  defamation platform without extinguishing the fire. The resulting steam explosion  may have devastating consequences.   Expect riots. Expect boycotts. Anticipate renewed vigor in the drive  toward institution of Islamic blasphemy law through a binding protocol to ICERD. 

Geert Wilders On Trial

http://www.jihadwatch.org/2010/01/geert-wilderss-speech-at-his-trial-today.html
Jihad Watch also has a five minute video in addition to the transcript.

The trial of Geert Wilders began January 20 '10 and will resume February 3 unless the judge acts affirmatively on Wilders' motion for dismissal.
At the opening of his trial, Geert Wilders spoke briefly. Two paragraphs stand out from the rest

Future generations will wonder to themselves how we in 2010, in this place, in this room, earned our most precious attainment. Whether there is freedom in this debate for both parties and thus also for the critics of Islam, or that only one side of the discussion may be heard in the Netherlands? Whether freedom of speech in the Netherlands applies to everyone or only to a few? The answer to this is at once the answer to the question whether freedom still has a home in this country.

Freedom was never the property of a small group, but was always the heritage of us all. We are all blessed by it.

As I interpret it, Geert Wilders is referring to the great risk that freedom of expression will be lost, never to be recovered, in which case future generations may take a very dim view of our generation. He also raises the issue of special privilege, the exalted status asserted by Islam.

It is not only a right, but also the duty of free people to speak against every ideology that threatens freedom. Thomas Jefferson, the third President of the United States was right: The price of freedom is eternal vigilance.

He characterized Islam as an ideology that threatens freedom, and postulated a right and duty to speak out against it. This raises necessity as a defense. In his concluding remarks, he expressed hope that the court will allow him to call witnesses who will testify about Islam's threat to liberty and to the truthfulness of his documentary and speeches. Thus he also raised the truth defense. If what he said is objectively true, it can not be slander or defamation.

The importance of this trial can not be exaggerated. Freedom of expression is at risk. While it may be lost to Holland in this trial, this trial may set a precedent for similar trials elsewhere in Europe and perhaps even in the United States.

The ayat quoted by Wilders in Fitna and his speech to the Dutch Parliament were documented in a previous post, part of which is reproduced below, slightly edited. The cited ayat are listed and quoted with links to Ibn Kathir's Tafsir. Reasonable people, reading this evidence, can only conclude that Wilders told the truth; that his speech and documentary are factual, neither slanderous nor defaming to Islam.

In a recent address to the Dutch Parliament, Geert Wilders cited the following ayat, some but not all of which are quoted in his movie, Fitna.

• 2:65
• 2:191
• 3:141
• 4:56
• 4:91
• 5:3
• 5:60
• 7:166
• 8:39
• 9:29 [mis-numbered as 9:30]
• 47:4
• 69:30-69:32

Each of the above listed ayat is linked to ten parallel translations.

This is the text of the violent ayat in the list above: [Links to Ibn Kathir's Tafsir supplied when available.]

• 2:191 And slay them wherever ye catch them, and turn them out from where they have Turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque, unless they (first) fight you there; but if they fight you, slay them. Such is the reward of those who suppress faith. [Abdullah Yusuf Ali]
• Righteousness comes from Taqwa
• Fighting in the Sacred Months
• This is the Ayah of the Sword
• 3:139-141 So do not become weak (against your enemy), nor be sad, and you will be superior (in victory) if you are indeed (true) believers. If a wound hath touched you, be sure a similar wound hath touched the others. Such days (of varying fortunes) We give to men and men by turns: that God may know those that believe, and that He may take to Himself from your ranks Martyr-witnesses (to Truth). And God loveth not those that do wrong. And that Allah may test (or purify) the believers (from sins) and destroy the disbelievers. [Hilali &Khan]
• The Encouragment to Do Good for which Paradise is the Result
• The Muslim believes in all that Allah `revealed and all the Prophets
• 4:91 Ye will find others who seek to gain your confidence as well as that of their own people: So oft as they return to sedition, they shall be overthrown in it: But if they leave you not, nor propose terms or peace to you nor withhold their hands, then seize them, and slay them, wherever ye find them. Over these have we given you undoubted power.[Rodwell]
• 8:39 And fight them until there is no more Fitnah (disbelief and polytheism: i.e. worshipping others besides Allah) and the religion (worship) will all be for Allah Alone [in the whole of the world]. But if they cease (worshipping others besides Allah), then certainly, Allah is All-Seer of what they do.[Hilali & Khan]
• The Order to fight to eradicate Shirk and Kufr
• The Order to fight until there is no more Fitnah
• Righteousness comes from Taqwa
• 9:29 Make war upon such of those to whom the Scriptures have been given as believe not in God, or in the last day, and who forbid not that which God and His Apostle have forbidden, and who profess not the profession of the truth, until they pay tribute out of hand, and they be humbled.[Rodwell]
• The Order to fight People of the Scriptures until They give the Jizyah
• 47:4 When ye encounter the infidels, strike off their heads till ye have made a great slaughter among them, and of the rest make fast the fetters. And afterwards let there either be free dismissals or ransomings, till the war hath laid down its burdens. Thus do. Were such the pleasure of God, he could himself take vengeance upon them: but He would rather prove the one of you by the other. And whoso fight for the cause of God, their works he will not suffer to miscarry;[Rodwell]
• Muslims invoke Allah for Help, Allah sends the Angels to help Them

Riyad us-Salaheen, Book 11, Ch. 234 cites many ahadith in proving the obligation of Jihad. It does not mention the above cited ayat, but does cite several others. Reliance of the Traveler specifically offers 9:29 as justification for declaring war on Jews and Christians.

O-9.8: The Objectives of Jihad
The caliph (o-25) makes war upon Jews, Christians, and Zoroastrians (N: provided he has first invited them to enter Islam in faith and practice, and if they will not, then invited them to enter the social order of Islam by paying the non-Muslim poll tax (jizya, def: o-11.4) -which is the significance of their paying it, not the money itself-while remaining in their ancestral religions) (O: and the war continues) until they become Muslim or else pay the non-Muslim poll tax (O: in accordance with the word of Allah Most High,
"Fight those who do not believe in Allah and the Last Day and who forbid not what Allah and His messenger have forbidden-who do not practice the religion of truth, being of those who have been given the Book-until they pay the poll tax out of hand and are humbled" (Koran 9.29)